Eco-Pragmatism Meets Human Rights Law

This post is the third in a series about human rights and environmental, climate, and energy justice. The series builds on a forthcoming article, Environmental Justice as Environmental Human Rights, by Member Scholar John H. Knox and co-author Nicole Tronolone.

A forthcoming article by John Knox and Nicole Tronolone brings international human rights law to bear on the issue of environmental justice. They argue that international human rights law provides a basis for treating some types of environmental inequities as human rights violations. In particular, they argue that the government has a duty to redress racial disparities in exposure to pollution and toxic chemicals. In their view, the government has conspicuously failed in this duty.

In a recent article of my own, I tried to work through questions about how regulations could address economic and racial inequality. My approach was pragmatic, focused on what agencies can do under current U.S. law to address this urgent problem. But despite our different starting points, my analysis has resonances with the human rights regime portrayed by Knox and Tronolone.

With their human rights approach in mind, I’d like to examine anew three issues that I discussed in my article in light of the human rights approach.  

Equality and the value of life. The current regulatory system already has a built-in feature that promotes equality. The "value of a statistical life" represents the amount of money that society is willing to spend to prevent an additional death. Under current practice by U.S. regulators, that amount is the same for everyone, old or young, rich or poor, Black or white. Economists find this wrongheaded: since the rich are willing to pay much more to reduce risks to themselves, economists think cost-benefit analysis should reflect this difference.

In my article, I argued that these economists are wrong. Using an equal value for all lives rests on a defensible moral principle. This principle holds that society should devote equal resources to protecting the lives of each of its members, regardless of their personal characteristics. This principle — equal protection from equal risks — blocks the kinds of measures that economic purists would favor, such as a tilt toward risk reduction in rich white communities rather than poor Black ones because of the difference in what people in those communities are able to pay to avoid risk.

Cost-benefit analysis is not exactly free from controversy, and it probably has few fans in the human rights community. But if cost-benefit analysis is going to be part of the regulatory process, my conclusion seems right in terms of human rights law. If there is a human right to protection from risks to life and health, it is a right held equally by everyone based on their status as human beings, irrespective of individual characteristics such as wealth or race. This seems very much consistent with what I have called the “equal harm principle,” which requires society to devote equal resources to provide all individuals protection against equal risks. In other words, what is relevant about people from the point of view of risk reduction is precisely the risks that they suffer, and resources should be allocated on that basis.

The U.S. Supreme Court v. human rights law. The problem here is the tension between protecting disadvantaged communities and the Supreme Court’s insistence on colorblindness. Despite arguments from some conservative judges, my article argued that agencies can safely follow a longstanding presidential mandate to avoid regulations with disparate impacts — that is, regulations that make communities of color worse off than they already are. That conclusion is surely consistent with the human rights approach.

The human rights approach discussed by Knox and Tronolone would go farther. It would require affirmative efforts by the government to reduce existing racial disparities. The legal status of such efforts under U.S. law is questionable. There’s an obvious analogy to affirmative action in higher education, which the Supreme Court recently banned. Perhaps the Court would allow agencies to take racial disparities into account in some contexts, but only if the ultimate regulation was not itself race-based. There is also an additional problem: environmental statutes are addressed to public health broadly rather than to specific subgroups. Thus, agencies like the U.S. Environmental Protection Agency (EPA) may not be able to respond directly to what Knox and Tronolone view as the imperatives of human rights law.

I would argue that a different equality norm — what I have called the equal-harm principle — is more at home in the U.S. regulatory system. In this view, what entitles Black communities to greater consideration in risk reduction is not that they are Black but that they are (quite clearly) more at risk.

Taking risk seriously. The reality is that low-wealth communities and communities of color often suffer the greatest harms (and not by chance). Not only do these communities often have higher pollution levels, but they are often more vulnerable — that is, given the same level of exposure, their members are more prone to health impacts.

By using vulnerability as a metric for risk, along with exposure, agencies can legitimately prioritize protecting those communities without having to make race or poverty themselves a basis for decision making. Since vulnerability and exposure combine to determine the risk of harm, this approach focuses on protecting those most at risk. By using much more granular approaches to determining who is exposed to risks and their vulnerability to harm, agencies could do far more to implement this principle, identify the needs of disadvantaged communities, and effectively address them.

One of the virtues of this approach is that it reflects all the other problems that face disadvantaged communities and lead to poorer health and access to medical care. If the Supreme Court does not view those problems as a basis for targeted interventions based on race, the resulting risk disparities nevertheless remain legitimate concerns for regulators.

While not explicitly addressing racism in the way that the human rights approach would advocate, the practical effect of focusing on communities at risk could be much the same. Thus, if we cannot protect what Knox and Tronolone see as international human rights directly, we may yet be able to do so indirectly.